Obradovich: GOP has abused the filibuster, but Democrats could erode confidence in the courts

Nov. 30, 2013

Senate Minority Leader Mitch McConnell, R-Ky., joined by Sen. Lamar Alexander, R-Tenn., left, speaks to reporters after the Democratic majority voted to weaken filibusters and make it harder for Republicans to block confirmation of the president's nominees for judges and other top posts, on Capitol Hill in Washington, Thursday, Nov. 21, 2013. McConnell says Democrats are using a power play to distract voters from the president's troubled health care law. (AP Photo/J. Scott Applewhite) / AP

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ON POLITICS

Kathie

The pumpkin pie is gone, the last of the turkey is destined for a casserole, and now all those Thanksgiving dishes we craved are showing up on the bathroom scale. Sometimes, the short-term pleasure of getting what we want is not worth the long-term consequences.

Maybe that’s why I’m not particularly thankful about the so-called “nuclear” change in U.S. Senate filibuster rules, even though there was a clear need for action. I’ve called for filibuster reform, but the new process goes too far in some ways and not far enough in others.

The decision by Senate Democrats ends the need for a 60-vote super-majority to get to a confirmation vote for executive-branch nominees and circuit and appellate court judges. The new rule, atleast for now, still allows minority Republicans to stall votes on Supreme Court justices and legislation.

There’s little dispute that Republicans have forced cloture votes on more of President Obama’s nominees than other presidents have experienced. Most of the president’s judicial nominees have eventually been approved. But the GOP’s refusal to fill three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit seemed so transparently political as to dare Democrats to do something about it.

The Democrats’ cure for too much partisanship is to make the process even more partisan. The old rules guaranteed that successful nominees had bipartisan support – it was extremely rare for any judicial nominee to be defeated once there was an actual vote. The problem has been getting through the procedural roadblocks to allow a vote.

The new rule means the majority party can get nominees up for a vote without minority-party cooperation. As angry as Republicans are about the change, it’s reasonable to assume many of Obama’s nominees will get very few GOP votes outside their home state.

That’s not a huge concern when it comes to executive branch positions. As Ruth Marcus aptly noted in a recent Washington Post column, those jobs end when the president leaves office. It’s a different story for federal judgeships, which are lifetime appointments.

Until now, it was too easy for the minority party to derail qualified nominees for partisan reasons. Busting the filibuster makes it too easy for the majority party to push through less-qualified or more ideological nominees for partisan reasons. If that happens, it could further erode public confidence in the courts.

Here in Iowa, we’ve already seen what happens when a well-funded interest group decides to stir up resentment against judges. Three Iowa Supreme Court justices were defeated for retention in 2010. I asked a couple of federal judges whether they think the filibuster rule might make it easier for interest groups to accuse the courts of being too ideological.

Senior Judge Robert Pratt of Des Moines was nominated in 1997 by President Bill Clinton, a Democrat, to the U.S. District Court in the Southern District of Iowa. He said the filibuster rule won’t infect the courts with more partisanship.

“Except for the Supreme Court, very, very few cases are determined by one’s ideology. They’re determined by what the precedent is and trying to follow it,” Pratt said. So in that sense, he does not expect the filibuster rule to have a major effect on the federal district court and court of appeals.

As for public perception, Pratt said the filibuster change may make a difference “at the margins.” “A controversial nominee will get confirmed where he or she wouldn’t have gotten confirmed before,” Pratt said.

For example, he said, Goodwin Liu, who was first nominated to the 9th Circuit Court of Appeals in 2010, would have been confirmed under the new rule. Liu withdrew his name in 2010 after Republicans filibustered his nomination. Miguel Estrada, a George W. Bush nominee who was filibustered by Democrats, likely would have been confirmed under the new rule, too, Pratt said.

Senior Judge Michael Melloy of Cedar Rapids was nominated in 1992 by a Republican, President George H.W. Bush, to the U.S. District Court for the Northern District of Iowa. He was nominated by President George W. Bush in 2001 for the 8th Circuit U.S. Court of Appeals and was unanimously confirmed.

Melloy said those who watch the courts closely and understand how they work will not see a major change due to the filibuster rule. However, he does not preclude the idea that people with partisan or ideological motives can use the rule change to their advantage.

“I suppose that’s a possibility that whether they are more ideological are not, they can certainly be portrayed as such for political purposes,” Melloy said. “I suppose it’ll be one more argument that a partisan can make that one of the checks and balances was the filibuster that doesn’t exist any more, so you better elect more people who are in the party that doesn’t control the White House.”

Melloy said he’ll also be watching to see what, if any, effect the change has on the delays that sometimes occur even before a nominee is named. Republican senators have, in some states, been reluctant to even forward recommendations to the White House for court vacancies, he said. The new rule may make that situation even worse.

Supreme Court nominees are exempt from the rule change for now, but Sen. Chuck Grassley, R-Ia., predicted last week that won’t last when his party has the majority.

“When that happens, our side will likely nominate and confirm lower court and Supreme Court nominees with 51 votes, regardless of whether the Democrats actually buy into this fanciful notion that they can demolish the filibuster on lower court nominees and still preserve it for Supreme Court nominees,” he said.

Meanwhile, the filibuster that allows the minority party to block legislation in the Senate remains in place. It’s a problem that prevents common-sense legislation, such as necessary fixes to Obamacare, from coming to the floor in the face of continuing Republican efforts to repeal the entire law.

If the majority party decided to nuke the filibuster for legislation as well as nominations, minority party members might just as well stay home. If the Senate majority leader doesn’t want to allow minority-party amendments, there’s little opportunity for those members to have a voice. That’s an abuse of the majority’s power. Any accomplishments won’t last long if voters get fed up and throw the bums out.

Sen. Tom Harkin, D-Ia., voted for the rule change. But he has long advocated for a fairer process in which the filibuster would be allowed, but the number of votes needed for cloture would diminish over time. The minority party would be guaranteed an opportunity to offer amendments but could not block legislation indefinitely.

A similar procedure could be used for judicial confirmation. The minority party would have time to make its points about nominees, but ultimately would have to allow a vote.

That’s not likely to happen any time soon. In the meantime, all we can do is insist that Obama and Senate Democrats show some self-restraint in vetting and pushing through their nominees. Whatever short-term gains come from increasing the partisanship of judicial selection will come at the expense of the courts’ credibility. Eventually, this turkey of a power shift will come home to roost.